JUDGMENT
B.N. Sinha, J.
1. This appeal is directed against the judgment dated 22.7.1987 passed by Shri Chandra Shekhar Sharma, Sessions Judge, Hazaribagh in Sessions trial No. 109 of 1985 convicting this appellant under Section 302 & 201 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life under Section 302 IPC. and to undergo rigorous imprisonment for five years under Section 201 IPC The appellant was tried along with Khakhnu Mahto, his father-in-law and Fulo Devi, his wife of the charges of committing murder of his brother Lutan Mahto, allegedly said to have been committed on 27th of February, 1984 at village-Dahu, Police Station-Tandwa, District-Hazaribagh and for causing disappearance of evidence in respect thereof in order to screen the offenders from legal punishment.
2. The prosecution case was initiated on the basis of information (F.I.R.) Exhibit-3 lodged by Chaukidar Dukhan Ghatwar (P.W.I) at Tandwa Folic Station on 6.3.1984 at 8.30 A.M. stating that there was a rumour for preceding one week that Lutan Mahto aced about 18 years had been killed by this appellant Kinu Mahto and his father-in-law Khakhnu Mahto and the dead-body was concealed somewhere in the forest. The motive for murder, as stated in the F.I.R., was that one day before the alleged dated of occurrence Lutan Mahto had called a Panchayati in his village as he wanted to separate from his brother Kinu Mahto and he had settled his marriage but, the appellant Kinu Mahto in order to grab the share of Lutan Mahto did not agree to the decision of the Panchayat and he in order to avoid the same. Killed his brother Lutan Mahto with the help of his father-in-law and that Fulo Devi, wife of the appellant went away to her Naihar after locking her house.
3. After usual investigation the police submitted charge-sheet against the appellant Kinu Mahto, his father-in-law Khakhnu Mahto and his wife Fulo Devi and thereafter the case was committed to the court of Session and the trial proceeded against all the three accused.
4. Charges under Section 302/34 & 201 IPC. were framed against all the accused, who pleaded not guilty and claimed to be tried. Their defence was that they have been falsely implicated.
5. The prosecution examined altogether ten witness at the trial. Out of them, P.W.I Chaukidar Dukhan Ghatwar is the informant of the case. P.W.4 Dipan Mahto, P.W.5 Sukhdeo Pandey P.W. 6 Chauthi Mahto and P.W.7 Sukar Mahto were examined to prove the recovery of the dead-body of Lutan Mahto from a well situated in Keri Forest. P.W.8 Reghu Mahto was tendered. P.W.2 Rudhan Mahto and P.W.3 lato Mahto were declared hostile by the prosecution. P.W.9 Dr. N.K. Addi had held post-mortem examination of the dead-body of Lutan Mahto. P.W.10, S.I. Sachidanand Mishra is Investigating Officer of the case.
6. It may be mentioned at the very out-set that there is no eye-witness on the point of murder of the deceased, and the case is based on the circumstantial evidence. Learned trial court after taking into consideration the circumstances discussed below found the charges under Section 302 & 201 IPC established beyond reasonable doubt against this appellant, but, he gave benefit of doubt to the accused Khakhnu Mahto and Fulo Devi and acquitted them. Learned trial court has held that on the evidence and from the facts and circumstances of the case, it is proved beyond doubt that appellant Kinu Mahto had killed the deceased Lutan Mahto and after killing him buried his dead-body in the eastern room of the house after digging a ditch and subsequently, he threw away the said dead-body in the well situated in Keri Jungal, and wiped of the floor of the said room with earth in order to cause disappearance of evidence of murder with the intention of screening himself from legal punishment. Learned trial court has based his findings mainly on the evidence of P.W.10, the Investigation Officer and has relied upon on the circumstances as deposed to by P.W.10 in his evidence. Learned trial court has held that the dead-body of the deceased was recovered from a well situated in Keri Forest, that one Chllohi (Hasua), a sharp cutting weapon was produced by the appellant Kinu Mahto before the Investigating Officer, and that the floor of the room was found dug and wiped by earth which was still found slack by the Investigating Officer. Learned trial court has accepted the motive for the occurrence as alleged by the prosecution.
7. Learned Counsel for the appellant has rightly submitted that the circumstances relied upon by the trial court do not lead to the conclusive conclusion that the crime was committed by this appellant and noneelse.
8. The evidence of P.W.10 the Investigating Officer is that after recording the F.I.R. the started for the P.O. village and he reached at the P.O. at about 12.15 P.M. and he directed the Chaukidar (P.W.I) to search for the accused and the Chaukidar brought the accused before him in his custody. His further evidence is that he interrogated the appellant and thereafter he along with some of the villagers including the P.Ws. started for Keri Forest and the appellant took them to a well in that forest and stated to him that the dead-body of his brother, deceased Lutan Mahto was in the said well. Further evidence of the 1.0. is that foul smell was coming out of the said well and an attempt was made to take out the dead-body from the well on the same day but as it became night the dead-body could not be taken out on that day and on the following day the dead-body could be taken out from the well. Further evidence of the Investigating Officer is that he held inquest over the dead-body and sent the same for post-mortem examination and thereafter he came back to the house of accused Kinu Mahto, who opened the door of his house and that he found the floor of a room of that house wiped of and towards north close to the door of the room the earth was found dug and there was a Chilohi (sharp cutting weapon) having blood like stains to the west of the door and that Chilohi was lifted and given to him by the appellant. Now these are the circumstances which has been deposed to by the Investigating Officer (P.W.10) and have been relied upon by trial court. But, even if these circumstances are accepted as cogently and firmly established, they do not unerringly point towards the guilt of the accused. The case of the prosecution was that this appellant along with his father-in-law and wife had committed murder of the deceased. It does not appear from the evidence of P.W.10 that this appellant has made any statement that he had concealed the dead-body of the deceased in that well. The appellant might have knowledge that the dead-body of the deceased was lying in the well, but that in, itself, cannot lead to the inference that he had concealed the dead-body in that well after committing murder of his brother. The evidence of P.W.7 on the other hand indicates that the Investigating Officer was inquring from him and other villagers as to where the dead-body of the deceased had been seen and thereafter they all went together near a well where some persons were already from before and those persons told them that the dead-body was in the well and thereafter the Investigating Officer along with P.W.7 and other villagers went there. Thus, on his evidence the alleged recovery of the dead-body of the deceased from the well at the instance of the appellant becomes doubtful.
9. The floor of the room found dug and freshly wiped cannot lead to the conclusion in absence of any evidence direct or circumstantial that the appellant has dug out the floor of the room for keeping the dead-body of the deceased. Similarly the recovery of Chilohi (Hasua) said to have on it blood like stains, in absence of proof that in contained human blood on it, cannot lead to the conclusion that was used for committing the murder of the deceased. That Chilohi was not sent to the Chemical Examiner for examination and report if it contained on it the stains of human blood. Moreover, that Chilohi cannot be said to have been recovered on the basis of information or statement given by the appellant. The evidence of the Investigating Officer is that he found a Chilohi kept near the door of the room and the same was lifted and given to him by the appellant.
10. Learned trial court has held that on the evidence of P.W. 4 it is proved that the deceased had called a Panchayati for getting his share in the property which was not being given by the appellant to the deceased. On that basis it has been submitted by the learned Counsel for the State that the motive for the occurrence, as given out by the prosecution, is fully established and that the appellant committed the murder of the deceased, as the deceased was insisting for his share in the property which the appellant did not like to give to him. True it is that the motive is relevant under Section 8 of the Evidence Act, but, the motive, even if it is established cannot take the place of proof of the offence for which the charge has been framed against an accused. The motive is relevant only for judging the probability of the prosecution case.
11. It is evident from the facts and circumstance mentioned above and the evidence discussed that the charges under Section 302 & 201 IPC against the appellant are not established. Hence, the conviction and sentence passed by the trial court against the appellant cannot be sustained.
12. I, accordingly, allow this appeal and set aside the conviction and sentence passed by the trial court against the appellant. The appellant is being discharged from the liability of his bail bonds.
N.S. Rao, J.
13. I agree.